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SUPREME COURT OF INDIA
P.N. BHAGWATI AND S. MURTAZA FAZAL ALI, JJ.
Namdeo Daulata Dhayagude and others, Appellants
Versus
State of Maharashtra, Respondent.
Criminal Appeal No. 449 of 1974,
D/- 19-8-1976.
Advocates appeared
Mr. D. Mookherjee, Sr. Advocate and Mr. U. R. Lalit, Sr. Advocate and Mr. V. N. Ganpule, Advocate with them, for Appellants; Mr. S. B. Wad. Advocate and Mr. M. N. Shroff, for Respondent.
SC Act, 1970 - Section 2 (1) (a) - Indian Penal Code - Section 302/34 – Offence of murder - Sentences of imprisonment – Appeal against conviction - Court must admit that evidence suffers from serious infirmities and it is difficult to accept that was an eye-witness to incident as claimed by him - Story narrated by him in his evidence before Court differs substantially from that set out in his statement before police and having regard to large number of contradictions in his evidence - Contradictions not on mere matters of detail but on vital points - Court do not think it would be safe to rely on his evidence and it may be excluded from consideration in determining guilt of accused Nos. 1 and 3. But even so evidence coupled with the dying declaration is in court opinion sufficient to bring home offence against accused Nos. 1 and 3 - There is no valid or cogent reason for rejecting the evidence - It appears to have been given in a natural and straightforward manner and it has a ring of truth was subjected to a lengthy and detailed cross-examination but no serious dent appears to have been caused in his evidence - There are undoubtedly a few minor contradictions brought out in cross-examination but they are all on unsubstantial matters of detail and do not affect the board features of his testimony - Court may refer to one contradiction on which strongest reliance was placed on behalf of accused Nos. 1 and 3 - Said in his statement before police that when deceased along and himself had gone about half distance on their way of accused No. 1 accused No. 2 who is brother of accused No. 1 came from front side and offered them tobacco and whilst they were chewing tobacco accused Nos. 1 and 3 emerged suddenly from darkness from the back side and came running and attacked deceased – Held, Court are therefore of view that there was clear and cogent evidence to establish that accused Nos. 1 and 3 suddenly emerged out of darkness accused No. 3 gave an axe blow on left arm of deceased while accused No. 1 gave an axe blow on his abdomen and the latter injury resulted in his death - These facts clearly show that there was common intention between accused Nos. 1 and 3 to cause death of deceased and High Court was therefore right in setting aside their acquittal and convicting them of offence under Section 302 read with Section 34 of the Indian Penal Code – Court may also point out that the offence of voluntarily causing hurt does not appear to have been established beyond doubt against accused No. 3 - Court have already pointed out earlier that perhaps was not present at the time of incident and that he has been subsequently put forward by prosecution as an eyewitness in order to strengthen the prosecution case - It is no doubt true that had some injuries on his person which were examined on next day and these injuries would seem to suggest that he must have been present when the incident took place - But if court look at these injuries court find that they are just superficial abrasions and they could have been caused by a fall - It is therefore not possible to say merely from the existence of these injuries must have been present at the time of incident and must have received these injuries as a result of a blow given by accused No . 3 - Presence at time of incident being highly doubtful prosecution case against accused No. 3 for voluntarily causing hurt cannot be said to be established and accused No. 3 must be acquitted of charge under Section 324 - That takes us to the case against accused No. 2 - It is clear from what court have said above in regard to dying declaration made by the deceased before that deceased did not name accused No. 2 as one of his assailants before - Even according accused No. 2 was talking to deceased when accused Nos. 1 and 3 attacked deceased and he neither had any weapon with him nor did he participate in attack - Not a single blow was given by him to the deceased - Only thing attributed to accused No. 2 was that after accused Nos. 1 and 3 had given axe blows to the deceased accused No. 2 said don’t leave him kill him - Court are not at all satisfied that accused No. 2 was a party to the common intention of accused Nos. 1 and 3 to kill deceased or that he had anything to do with attack on deceased - He appears to have been falsely implicated as he happens to be brother of accused No. 1 In circumstances we think that he was rightly acquitted by learned Additional Sessions Judge and there was no reason for High Court to interfere with his acquittal – Appeal dismiss
Judgment
BHAGWATI, J. :- The appellants, who were accused Nos. 1 to 3 in the Trial before the Additional Sessions Judge, Satara, were charged under Section 302 read with Sec. 34 of the Indian Penal Doe for the offences of intentionally causing the death of one Malhari (hereinafter referred to as the deceased) and Section 324 read with Section 34 of the Indian Penal Code for the offences of voluntarily causing hurt to one Babu Shaikh. The charge was sought to be substantiated by three categories of evidence : (1) evidence of Hiralal Sutar and Babu Shaikh,both of whom claimed to be eye-witnesses to the incident resulting in the death of the deceased and injuries to Babu Shaikh : (2) evidence of dying declarations made by the deceased before Dinkar Khunte and Police Patil Madhavrao Dhayagude : and (3) evidence of recovery of bloodstained clothes from accused Nos. 1, 2 and 3. The learned Additional Sessions Judge was not satisfied with this evidence and taking the view that it suffered from considerable discrepancies and improbabilities, he acquitted all the accused. The State preferred an appeal against the acquittal and the High Court, which heard the appeal, came to the conclusion, on a review of the evidence, that the view taken by the learned Additional Sessions Judge was unreasonable and the evidence led on behalf of the prosecution was sufficient to establish the guilt of accused Nos. 1, 2 and 3. The High Court took the view that the reasons given by the learned Additional Sessions Judge for rejecting the prosecution evidence were flimsy and unsustainable and accepting the prosecution evidence as substantially true, the High Court convicted accused Nos. 1, 2 and 3 of the offences under Section 302 read with Section 34 for intentionally causing the death of the deceased and sentenced each of them to suffer imprisonment for life and also in addition convicted accused No. 3 of the offences under Section 324 for voluntarily causing hurt to Babu Shaikh and sentenced him to suffer rigorous imprisonment for one year, the substantive sentences of imprisonment against accused No. 3 being directed to run concurrently. All the three accused thereupon preferred the present appeal under Section 2 (1) (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
2. The case of accused No. 2 stand on an entirely different footing from that of accused Nos. 1 and 3 and we shall, therefore, consider it separately. So far as accused Nos. 1 and 3 are concerned, we have carefully gone through the evidence led on behalf of the prosecution and we do not think that the High Court was in error in setting aside the acittal of accused Nos. 1 and 3 and convicting them for the offence of intentionally causing the death of the deceased. We must admit that the evidence of Babu Shaikh suffers from serious infirmities and it is difficult to accept that Babu Shaikh was an eye-witness to the incident as claimed by him. The story narrated by him in his evidence before the Court differs substantially from that set out in his statement before the police and having regard to the large number of contradictions in his evidence - contradictions not on mere matters of detail, but on vital points - we do not think it would be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused Nos. 1 and 3. But even so, the evidence of Hiralal Sutar, coupled with the dying declaration is, in our opinion, sufficient to bring home the offence against accused Nos. 1 and 3. There is no valid or cogent reason for rejecting the evidence of Hiralal Sutar. It appears to have been given in a natural and straightforward manner and it has a ring of truth. Hiralal Sutar was subjected to a lengthy and detailed cross-examination, but no serious dent appears to have been caused in his evidence. There are undoubtedly a few minor contradictions brought out in the cross-examination, but they are all on unsubstantial matters of detail and
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